Colonial been passed for his removal, specifying the several proceedings of the judge which, in his excellency's opinion, had apparently influenced the Parliament in adopting those addresses,' and offering the judge 'six months leave of absence on full pay' to enable him to visit England to vindicate his character and conduct before the imperial authorities:-he having declined to attend a select committee of the legislative council, appointed to examine his 'recent judicial decisions and conduct.' e On the receipt of these addresses, the Colonial Secretary (the Duke of Newcastle) took the opinion of the law officers of the crown (Sir William Atherton and Sir Roundell Palmer) on the subject. In conformity with their advice, he informed the governor that her majesty's government considered that a colonial judge is not only at liberty but is bound to entertain the question whether a colonial law, material to the decision of the question before him, is or is not valid;' that Judge Boothby was right in the main, though not in every instance, when he questioned the validity of certain Acts of the South Australian Legislature; and that inasmuch as this legislature, when it passed the addresses for the judge's removal was not, strictly speaking, legally constituted-although the Imperial Parliament had since remedied the defect-it had not been deemed expedient to advise the crown to remove Judge Boothby, pursuant to the said addresses. With regard to other matters wherein the judge had given offence to the legislative chambers, so long as it was unadvisable to give effect to the addresses for his removal from the bench, her majesty's government considered that it would be unbecoming to express any mere unauthoritative opinion respecting the official conduct of a judge.' Furthermore, added the Secretary, 'I hold the practical independence of the superior courts of a colony to be, with the appointment of the governor, the right of exercising a veto upon colonial enactments, and the right of appeal to her Majesty in Council among the links which bind together the colonial empire of Great Britain. It is of vital importance not only to the colonies, but to all those who have dealings with them of whatever kind, and to the imperial government itself, that these courts should exercise their functions in entire independence not only of the local executive, but of the popular feelings which are from time to time reflected in the legislature, or of any political party which may happen to be in the ascendant. And I consider that the principal guarantee of this independence is to be found in the assurance that a judge, once appointed, will not be displaced without the reasonable concurrence of an authority wholly removed from all local or temporary influences. By the existing law of South Australia I consider such an e Commons Papers, 1862, vol. xxxvii. pp. 172-177. authority to be entrusted very properly to her majesty, acting on the advice of her ministers in Great Britain, and I hold that in dismissing a judge in compliance with addresses from a local legislature, and in conformity with that law, the queen is not performing a mere ministerial act, but adopting a grave responsibility, which her majesty cannot be advised to incur without satisfactory evidence that the dismissal is proper.' The Colonial Secretary was prepared to admit that a judge might be properly removed on a parliamentary address, if satisfactory proof were adduced that owing to his perversity, or habitual disregard of judicial propriety, the administration of justice might be practically obstructed by his continuance in office:' and this might be shown 'by his inflexible enforcement of opinions which were inconsistent with the beneficial performance of his duties,' and which might be regarded by competent authority as 'incorrect in point of law.' In conclusion, his grace observed, that while expressing no opinion respecting Mr. Boothby's conduct, I have thought it due both to him and the colony to state thus explicitly the principles by which I should be guided in dealing with any charges which might hereafter be brought against a colonial judge, on the authority of a colonial legislature.' (Signed) Newcastle, April 24, 1862. In conclusion, it may be remarked that the crown law officers made no objection to the circumstance of there being separate addresses from the two Houses, in place of one joint address. Nor did they deem it to be irregular that the addresses omitted to state any specific charges, 'provided that the crown is by any means satisfied of the reasons on which the address is founded.'d In June 1866 both Houses of the South Australian legislature again addressed the crown for the removal of Mr. Justice Boothby. Inasmuch as the addresses were accompanied by despatches, wherein statements were made that required judicial investigation, her majesty was advised to refer the matter to the Judicial Committee of the Privy Council. These papers have not yet been published ;e but it appears that the address was complied with, and that the judge was formally removed from his office on July 29, 1867. He contemplated a further appeal to the Privy Council, but before he could take any steps to that end, he died in Adelaide, South Australia, on June 21, 1868.f And here it may be observed, that while, as will appear from cases cited in this chapter, an appeal lies to d Corresp. relative to Mr. Justice Boothby, Commons Papers, 1862, vol. xxxvii. pp. 180-184. Hans. Deb. vol. clxxxvii. p. 1494. 'Law Times, Sept. 19, 1868, p. 372. Judges. Jurisdic tion of the Privy Colonial the Queen in Council, upon the removal of a judge in any colony by the governor thereof, whether it be in consequence of a proceeding under the Act 22 Geo. III., or, in compliance with a parliamentary address,-there is no appeal to the Privy Council, or to any other tribunal, where the removal is effected by the direct authority of the queen. Nevertheless, Earl Grey, when Secretary of State for the Colonies, regarded the principle of judicial independence as of such vital importance, that he would never recommend to her majesty to remove a colonial judge, without referring the questions connected with the conduct of the judge to the judicial committee of the Privy Council. Neglect of proper formalities in Judge Boothby's case. An examination of the proceedings in the South Australian Legislature in the case of Mr. Justice Boothby will show that none of the formalities which have invariably attended the conduct of such investigations by the Houses of Lords and Commons were observed upon this occasion. In both chambers, select committees were appointed to enquire into certain judicial decisions of the judge, and his honour was summoned to attend and give evidence before the same. While he appeared as a witness before the House of Assembly committee, he thought proper to decline to attend upon that of the Legislative Council. But after the reports of these committees were drafted, no opportunity was afforded to the judge, by either House, to rebut the criminatory charges therein contained, or to appear by himself or counsel at the bar in his own defence. There was no further enquiry instituted by either House, and the addresses were severally passed without embodying the specific charges of misconduct which had induced the Houses to agree to them." These grave departures from constitutional practice can only be accounted for or excused by the want of ade 8 Hans. Deb. vol. clxx. p. 300. liament of South Australia, 1861, 3 vols. quate information as to the proper course of procedure in Parliament against judges—a want which the present work attempts, for the first time, to supply-and by the fact that the highest constitutional authorities seem to have overlooked the cases that have actually arisen in England, of a like nature, under the Imperial Statutes. It is to be regretted, moreover, that the English law officers of the crown should have acquiesced in the omission of the particular grounds of complaint against Judge Boothby, in the addresses for his removal,' provided that the crown was, by any means, satisfied of the reasons on which the addresses were founded.' Such an omission was undoubtedly irregular and unparliamentary, and might serve as a precedent hereafter for a more serious departure from substantial justice. In one of the few States of the American Republic wherein the British tenure of judicial office is still retained, the governor refused to comply with an address of the two branches of the legislature for the removal of a judge, because no reasons for the same had been assigned in the address, while in every former application of the kind to the executive, full reasons' for removal had been given.j If hereafter it should unhappily be necessary for the Thus, in Lord Brougham's Treatise on the British Constitution (2nd edit. 1861) it is said, in reference to the removal of judges upon a joint address of the two Houses of Parliament, there is no instance of this ever having been done' (p.357). And the law officers of the crown, in a legal opinion, dated April 12, 1862, remark that no instance of the removal of an English judge by the crown, on the address of both Houses of Parliament, has occurred since the passing of the 1 Geo. III. c. 23:' quite overlooking the case of Sir Jonah Barrington, not to mention the several other cases cited in this chapter, wherein the procedure upon an address was resorted to. Commons Papers, 1862, vol. xxxvii. p. 183. Acts and Resolves of the State of Massachusetts, 1856, pp. 325335. And see Story, Constitution of the United States, secs. 1600-1632, as to the importance of maintaining the independence of the judges without encroachment. The American Law Review, for October 1868 (p. 85), in an article on certain flagrant acts of judicial misconduct in the State of New York, pleads for a return to a judiciary appointed by the executive, and holding office during good behaviour, as the only means of rescuing the nation from the disgrace entailed by the proceedings of a judiciary elected by popular vote, and for a limited period. legislative chambers in any British colony to assume the responsibility of addressing the crown to remove an unworthy occupant of the judicial bench, it may be hoped that the proceedings will be conducted with the solemnity, impartiality, and respect for constitutional rights which ought always to attend upon the exercise of such important functions by a legislative body. |